DISTRIBUTION OF OFFERED SECURITIES. 5.1 The Underwriters shall offer the Offered Securities for sale to the public, directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and upon the terms and conditions set forth in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, and this Agreement. The Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in the final decision document issued by the Alberta Securities Commission pursuant to the Prospectus Review Procedures with respect to the filing of the Final Base Shelf Prospectus and that the sale of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in default. 5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased. 5.3 In connection with the distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time. 5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions. 5.5 The Underwriters will not solicit offers to purchase or sell the Offered Securities so as to require registration of the Offered Securities or the filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Offered Securities under the laws of any jurisdiction other than the Provinces and the United States, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell. 5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter.
Appears in 1 contract
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 The Underwriters shall, and shall require any investment dealer (other than the Underwriters) with which the Underwriters have a contractual relationship in respect of the distribution of the Offered Securities (each, a “Selling Firm”) to agree to, comply with Canadian Securities Laws and U.S. Securities Laws in connection with the distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and Firms upon the terms and conditions set forth out in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this Agreement. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale and sell the Offered Securities only in those jurisdictions where they may be lawfully offered for sale or sold and shall seek the prior consent of the Company, such consent not to be unreasonably withheld, regarding the jurisdictions other than the Qualifying Jurisdictions and the United States where the Offered Securities are to be offered and sold. The Underwriters shall: (i) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Securities as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt; and (ii) as soon as practicable after the completion of the distribution of the Offered Securities, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, notify the Company thereof and provide the Company with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions.
9.2 The Underwriters and any Selling Firm shall be entitled to offer and sell the Initial Units and Additional Securities to purchasers that are, or are acting for the account or benefit of, persons in the United States or U.S. Persons solely pursuant to an applicable exemption or exemptions from the registration requirements of the U.S. Securities Act and any applicable state securities laws, and in other jurisdictions in accordance with any applicable securities and other laws in the jurisdictions in which the Underwriters and/or Selling Firms offer the Offered Securities. Any offer or sale of the Initial Units and Additional Securities to purchasers that are, or are acting for the account or benefit of, persons in the United States or U.S. Persons will be made in accordance with Schedule A hereto.
9.3 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in Qualifying Jurisdiction where a Final Receipt or similar document for the final decision document Final Prospectus shall have been obtained from or deemed issued by the Alberta applicable Securities Commission pursuant to the Prospectus Review Procedures with respect to following the filing of the Final Base Shelf Prospectus unless otherwise notified in writing by the Company.
9.4 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and that the sale Marketing Materials, the Underwriters shall not provide any potential investor with any materials or written communication in relation to the Distribution of the Offered Securities. The Company and the Underwriters, on a several basis, each covenant and agree (i) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities, (ii) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Company other than (A) such marketing materials that have been approved and filed in accordance with NI 44-101, (B) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material, and (C) any “standard term sheets” (within the meaning of Canadian Securities Commission. Laws) approved in writing by the Company and the Co-Lead Underwriters, and (iii) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and the Co-Lead Underwriters shall only be provided to potential investors in the Qualifying Jurisdictions.
9.5 Notwithstanding the foregoingforegoing provisions of this Section 9, an Underwriter will not be liable to the Corporation Company under this Section 5.1 9 or Schedule A with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if 9 or Schedule A by another Underwriter or another Underwriter’s U.S. Affiliate or any Selling Firm appointed by another Underwriter. However, each Underwriter shall be liable to the Underwriter is not also Company under this Section 9 or Schedule A with respect to any breach by it, its U.S. Affiliate or any Selling Firm appointed by it of this Section 9 or of the selling restrictions set forth in default.Schedule A.
5.2 After 9.6 Neither the Company, nor the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed or their U.S. Affiliates, shall make any public announcement in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased.
5.3 In connection with the distribution Offering, except if the other party has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters may over-allot or effect transactions that stabilize or maintain the market price drafts of any press releases of the Offered Company for review and comment by the Underwriters and the Underwriters’ counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Initial Units and Additional Securities at levels other than those may be offered and sold to persons that might otherwise prevail are, or are acting for the account or benefit of, persons in the open marketUnited States or U.S. Persons, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters such press release shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation whencontain, in their opinionsubstantially the following form, the Underwriters have ceased distribution of the Offered Securities a legend and shall, as soon as practicable, provide the Corporation comply with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions.
5.5 The Underwriters will not solicit offers to purchase or sell the Offered Securities so as to require registration of the Offered Securities or the filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Offered Securities Rule 135e under the laws of any jurisdiction other than the Provinces and the United States, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sellU.S. Securities Act: “THIS NEWS RELEASE IS INTENDED FOR DISTRIBUTION IN CANADA ONLY AND IS NOT INTENDED FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR DISSEMINATION IN THE UNITED STATES.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter.”
Appears in 1 contract
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 The Underwriters shall, and shall require any investment dealer (other than the Underwriters) with which the Underwriters have a contractual relationship in respect of the distribution of the Offered Securities (each, a “Selling Firm”) to agree to, comply with Canadian Securities Laws in connection with the distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, public directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and Firms upon the terms and conditions set forth out in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this Agreement. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale to the public and sell the Offered Securities only in those jurisdictions where they may be lawfully offered for sale or sold and shall seek the prior consent of the Company, such consent not to be unreasonably withheld, regarding the jurisdictions other than the Qualifying Jurisdictions and the United States where the Offered Securities are to be offered and sold. The Underwriters shall: (i) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Securities as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt; and (ii) as soon as practicable after the completion of the distribution of the Offered Securities, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, notify the Company thereof and provide the Company with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions.
9.2 [Intentionally left blank]
9.3 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in Qualifying Jurisdiction where a Final Receipt or similar document for the final decision document Final Prospectus shall have been obtained from or deemed issued by the Alberta applicable Securities Commission pursuant to the Prospectus Review Procedures with respect to following the filing of the Final Base Shelf Prospectus unless otherwise notified in writing by the Company.
9.4 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and that the sale Marketing Materials, the Underwriters shall not provide any potential investor with any materials or written communication in relation to the Distribution of the Offered Securities. The Company and the Underwriters, severally, and not jointly nor jointly and severally, each covenant and agree (i) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities, (ii) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Company other than (a) such marketing materials that have been approved and filed in accordance with NI 44-101, (b) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material, and (c) any “standard term sheets” (within the meaning of Canadian Securities Commission. Laws) approved in writing by the Company and PI, and (iii) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and PI shall only be provided to potential investors in the Qualifying Jurisdictions.
9.5 Notwithstanding the foregoingforegoing provisions of this Section 9, an Underwriter will not be liable to the Corporation Company under this Section 5.1 9 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in default.
5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid 9 by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased.
5.3 In connection with the distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions.
5.5 The Underwriters will not solicit offers to purchase or sell the Offered Securities so as to require registration of the Offered Securities or the filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Offered Securities under the laws of any jurisdiction other than the Provinces and the United States, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other another Underwriter or any Selling Firm appointed by another Underwriter. However, each Underwriter shall be liable to the Company under this Section 9 with respect to any breach by it or any Selling Firm appointed by it of this Section 9.
9.6 Neither the Company, nor the Underwriters, shall make any public announcement in connection with the Offering, except if the other Underwriterparty has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters drafts of any press releases of the Company for review and comment by the Underwriters and the Underwriters’ counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Units and Option Units may be offered and sold to United States purchasers, any such press release shall contain, in substantially the following form, a legend and comply with Rule 135e under the U.S. Securities Act: “This news release does not constitute an offer to sell or a solicitation of an offer to sell any of securities in the United States. The securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”) or any state securities laws and may not be offered or sold within the United States or to or for the account or benefit of U.S. Persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.”.
Appears in 1 contract
Samples: Underwriting Agreement (Invictus MD Strategies Corp.)
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 Each Underwriter hereby severally, and not jointly, nor jointly and severally, represents and warrants to the Company that:
(a) it is, and will remain so, until completion of the Offering, appropriately registered under Canadian Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and
(b) it has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein.
9.2 The Underwriters shall, and shall require any Selling Firm to agree to, comply with Canadian Securities Laws and U.S. Securities Laws in connection with the distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, public directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and Firms upon the terms and conditions set forth out in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this Agreement. In addition, the Company and the Underwriters further agree that any sales or purchases of the Offered Securities in the United States or to U.S. persons will be on a private placement basis pursuant to the exemptions from the registration requirements of the 1933 Act provided by Rule 506(b) of Regulation D thereunder or Rule 144A thereunder and similar exemptions under applicable U.S. state securities laws, and outside the United States to non-U.S. persons pursuant to Rule 903 of Regulation S under the 1933 Act. All offers and sales of the Offered Securities in the United States or to U.S. persons: (i) will be made in accordance with Schedule "A" attached hereto (which schedule is incorporated into and forms part of this Agreement) and in accordance with the U.S. Offering Memorandum; (ii) will be conducted in such a manner so as not to require registration thereof or the filing of a prospectus or an offering memorandum with respect thereto under the 1933 Act; and (iii) will be conducted through a U.S. Affiliate and in compliance with United States Securities Laws. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale to the public and sell the Offered Securities only in those jurisdictions where they may be lawfully offered for sale or sold and shall seek the prior consent of the Company, such consent not to be unreasonably withheld, regarding the jurisdictions other than the Qualifying Jurisdictions and the United States where the Offered Securities are to be offered and sold. The Underwriters shall: (i) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Securities as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt; and (ii) as soon as practicable after the completion of the distribution of the Offered Securities, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, notify the Company thereof and provide the Company with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions.
9.3 Subject to Section 9.1, the Underwriters and any Selling Firm shall be entitled to offer and sell the Units and Option Units to purchasers that are in other jurisdictions outside of the Qualifying Jurisdictions and the United States in accordance with any applicable securities and other laws in the jurisdictions in which the Underwriters and/or Selling Firms offer the Offered Securities (provided that no prospectus or similar document is required to be filed in any such jurisdiction and the Company is not otherwise made subject to any ongoing compliance with any law or other regulation or rule).
9.4 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in Qualifying Jurisdiction where a Final Receipt or similar document for the final decision document Final Prospectus shall have been obtained from or deemed issued by the Alberta applicable Securities Commission pursuant to the Prospectus Review Procedures with respect to following the filing of the Final Base Shelf Prospectus unless otherwise notified in writing by the Company.
9.5 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and that the sale Marketing Material, the Underwriters shall not provide any potential investor with any materials or written communication in relation to the Distribution of the Offered Securities. The Company and the Underwriters, on a several basis, each covenant and agree: (a) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities; (b) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities or the Company other than: (i) such marketing materials that have been approved and filed in accordance with NI 44-101; (ii) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material; and (iii) any "standard term sheets" (within the meaning of Canadian Securities Laws) approved in writing by the Company and the Underwriters; and (c) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and the Underwriters shall only be provided to potential investors in the Qualifying Jurisdictions.
9.6 Neither the Company, nor the Underwriters shall make any public announcement in connection with the Offering, except if the other party has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters drafts of any press releases of the Company for review and comment by the Underwriters and the Underwriters' counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Units and Option Units may be offered and sold to United States purchasers, any such press release shall contain, in substantially the following form, a legend and comply with Rule 135e under the U.S. Securities Act: “This news release does not constitute an offer to sell or a solicitation of an offer to sell any of the securities in the United States. The securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”) or any state securities laws and may not be offered or sold within the United States or to or for the account or benefit of U.S. Persons unless registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary and applicable state securities laws or an exemption from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that such registration is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in defaultavailable.
5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased.
5.3 In connection with the distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions.
5.5 The Underwriters will not solicit offers to purchase or sell the Offered Securities so as to require registration of the Offered Securities or the filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Offered Securities under the laws of any jurisdiction other than the Provinces and the United States, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter.”
Appears in 1 contract
Samples: Underwriting Agreement
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 The Underwriters shall, and shall require any Selling Firm to agree to, comply with Canadian Securities Laws and U.S. Securities Laws in connection with the Distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus and this Agreement. In addition, the Company and the Underwriters further agree that any (i) reoffers and resales of the Offered Securities in the United States or to, or for the account or benefit of, U.S. persons to Qualified Institutional Buyers or (ii) offers to sell Offered Securities by the Corporation to Substituted Purchasers that are U.S. Accredited Investors, will be made by the Underwriters acting through their respective U.S. Affiliates in accordance with the U.S. Offering Memorandum and Schedule "A" hereto, which is integrated to and forms and integral part of this Agreement. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale and sell the Offered Securities only in those jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other investment dealers jurisdictions, and brokers provided that in the case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Company will not be subject to any continuous disclosure requirements in such jurisdiction.
9.2 The Underwriters shall: (a) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the Distribution of the Offered Securities as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt; and (b) as soon as practicable after the completion of the Distribution of the Offered Securities, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, notify the Company thereof and provide the Company with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions.
9.3 Subject to Section 9.1, the Underwriters and any Selling Firm shall be entitled to offer and sell the Units and Option Units to purchasers that are in other jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other jurisdictions, and provided that in the case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Company will not be subject to any continuous disclosure requirements in such jurisdiction.
9.4 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities are qualified for Distribution in any Qualifying Jurisdiction where a Final Receipt or similar document for the Final Prospectus shall have been obtained from or deemed issued by the applicable Securities Commission following the filing of the Final Prospectus unless otherwise notified in writing by the Company.
9.5 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and the Marketing Material, the Underwriters shall not provide any potential investor with any materials or written communication in relation to the Distribution of the Offered Securities. The Company and the Underwriters, on a several basis, as applicable, each covenant and agree: (a) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities; (b) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities or the Company other than: (i) such marketing materials that have been approved and filed in accordance with NI 44-101; (ii) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material; and (iii) any "standard term sheets" (within the meaning of Canadian Securities Laws) approved in writing by the Company and the Underwriters; and (c) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and the Underwriters shall only be provided to potential investors in the Qualifying Jurisdictions.
9.6 Neither the Company, nor the Underwriters shall make any public announcement in connection with the Offering, except if the other party has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters drafts of any press releases of the Company for review and approval by the Lead Underwriter (on behalf of the Underwriters) and the Underwriters' counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Offered Securities may be offered and sold in the United States or, to or for the account or benefit of, U.S. Persons, any such press release shall contain the following embargo “Not for distribution to United States Newswire Services or for dissemination in the United States”, provided however, that any press release issued announcing the closing of the Offering shall not bear such embargo. In addition, any such press release shall comply with, Rule 135e under the 1933 Act and include the following disclaimer: "This news release does not constitute an offer to sell or a solicitation of an offer to sell any of the securities in the United States. The securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the Underwriters together with "U.S. Securities Act") or any state securities laws and may not be offered or sold within the United States or to or for the account or benefit of U.S. persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such other investment dealers registration is available."
9.7 Each Underwriter hereby severally, and brokers are referred not jointly, represents and warrants to herein as the “Selling Firms”)Company, in compliance with the following:
(a) the Underwriter is and will remain so until the completion of the Offering, appropriately registered under applicable Canadian Securities Laws and, to the extent such Underwriter (by and applicable through its U.S. federal Affiliate) is selling Units in the United States, the U.S. Securities Laws (by and through its U.S. Affiliate) so as to permit it to lawfully fulfill its obligations hereunder;
(b) the Underwriter has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(c) other than the Marketing Materials, the Underwriter has not provided any marketing materials to any potential investors in connection with the Offering. The Underwriter has not provided any potential investor in connection with the Offering with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are fist provided to any potential investor of Offered Securities;
(d) it acknowledges that the Compensation Options, Compensation Units, Compensation Shares, Compensation Warrants and Compensation Warrant Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States. In connection with the issuance of the Compensation Options to it, it represents, warrants and covenants that (i) it is acquiring the Compensation Options as principal for its own account and not for the benefit of any other person; (ii) it is not a U.S. Person and is not acquiring the Compensation Options in the United States, or on behalf of a U.S. Person or a person located in the United States; and (iii) this Agreement was executed and delivered outside the United States. The Underwriter acknowledges and agrees that the Compensation Options may not be exercised in the United States or by or on behalf or for the benefit of a U.S. Person or a person in the United States, unless such exercise is exempt from registration under the 1933 Act and the applicable securities laws of any state of the United States.
9.8 The Underwriters severally, and not jointly, nor jointly and severally, covenant agree with the Company, the following:
(a) During the period of distribution of the Offered Securities by or through the Underwriters, the Underwriters will offer and sell Offered Securities to the public only in the Selling Jurisdictions where they may lawfully be offered for sale upon the terms and conditions set forth in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this AgreementAgreement either directly or through other registered investment dealers and brokers. The Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in Qualifying Jurisdiction where the final decision document issued by the Alberta Securities Commission pursuant to the Prospectus Review Procedures with respect to Final Receipt shall have been obtained following the filing of the Final Base Shelf Prospectus and that the sale of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in defaultProspectus.
5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. (b) The Underwriters will inform comply with applicable securities laws in the Corporation if the Offering Price to the public is decreased.
5.3 In Qualifying Jurisdictions in connection with the offer and sale and distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions.
5.5 (c) The Underwriters will not directly or indirectly, solicit offers to purchase or sell the Offered Securities or deliver any Offering Document to purchasers so as to require registration of the Offered Securities or the filing of a prospectus, prospectus or registration statement or other notice or document with respect to the Offered Securities under the Laws of any jurisdiction other than the Qualifying Jurisdictions, including without limitation, the United States.
(d) The Underwriters will use their commercially reasonable best efforts to complete the distribution of the Offered Securities under as promptly as possible after the laws Closing Time. The Lead Underwriter will notify the Company when the Underwriters have ceased the distribution of any jurisdiction other than the Provinces and Offered Securities, and, within 30 days after the United StatesClosing Date, will provide the Company, in writing, with a written breakdown of the number of Offered Securities distributed (i) in each of the Qualifying Jurisdictions, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by (ii) in any other Underwriter or any Selling Firm appointed by any other Underwriterjurisdictions in which the Units are sold.
Appears in 1 contract
Samples: Underwriting Agreement
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 Each Underwriter hereby severally, and not jointly, nor jointly and severally, represents and warrants to the Company that:
(a) it is, and will remain so, until completion of the Offering, appropriately registered under Canadian Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and
(b) it has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein.
9.2 The Underwriters shall, and shall require any Selling Firm to agree to, comply with Canadian Securities Laws and U.S. Securities Laws in connection with the Distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, public directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and Firms upon the terms and conditions set forth out in the Prospectus, any Supplementary MaterialFinal Prospectus and this Agreement. In addition, the Company and the Underwriters further agree that any reoffers and resales of the Offered Securities in the United States or to, or for the account or benefit of, U.S. Final Prospectuspersons to persons who are reasonably believed to be Qualified Institutional Buyers by the Underwriters (or their U.S. Affiliates) will be made by the Underwriters through U.S. Affiliates in accordance with the U.S. Offering Memorandum and Schedule "A" hereto, as applicable, which is integrated to and forms and integral part of this Agreement. The Underwriters shall, and shall be entitled require any Selling Firm to assume that agree to, offer for sale and sell the Offered Securities are qualified for distribution only in any Province named those jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other jurisdictions, and provided that in the final decision case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document issued by in such jurisdictions and the Alberta Securities Commission pursuant Company will not be subject to any continuous disclosure requirements in such jurisdiction.
9.3 The Underwriters shall: (a) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the Prospectus Review Procedures with respect to the filing of the Final Base Shelf Prospectus and that the sale Distribution of the Offered Securities has been registered under as soon as reasonably practicable but in any event no later than 42 days after the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in default.
5.2 After the Underwriters have made a reasonable effort to sell all date of the Offered Securities at Final Receipt; and (b) as soon as practicable after the initial Offering Price disclosed in completion of the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased.
5.3 In connection with the distribution Distribution of the Offered Securities, and in any event within 30 days after the Underwriters may over-allot or effect transactions that stabilize or maintain the market price later of the Offered Securities at levels other than those that might otherwise prevail in Closing Date or the open marketlast Option Closing Date, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities Company thereof and shall, as soon as practicable, provide the Corporation Company with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities CommissionsQualifying Jurisdictions.
5.5 The 9.4 Subject to Section 9.1, the Underwriters and any Selling Firm shall be entitled to offer and sell the Units and Additional Securities to purchasers that are in other jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other jurisdictions, and provided that in the case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Company will not solicit offers be subject to purchase or sell any continuous disclosure requirements in such jurisdiction.
9.5 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities so as are qualified for Distribution in any Qualifying Jurisdiction where a Final Receipt or similar document for the Final Prospectus shall have been obtained from or deemed issued by the applicable Securities Commission following the filing of the Final Prospectus unless otherwise notified in writing by the Company.
9.6 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and the Marketing Material, the Underwriters shall not provide any potential investor with any materials or written communication in relation to require registration the Distribution of the Offered Securities. The Company and the Underwriters, on a several basis, each covenant and agree: (a) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities; (b) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities or the filing Company other than: (i) such marketing materials that have been approved and filed in accordance with NI 44-101; (ii) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material; and (iii) any "standard term sheets" (within the meaning of a prospectusCanadian Securities Laws) approved in writing by the Company and the Underwriters; and (c) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and the Underwriters shall only be provided to potential investors in the Qualifying Jurisdictions.
9.7 Neither the Company, registration statement nor the Underwriters shall make any public announcement in connection with the Offering, except if the other party has consented to such announcement or other notice the announcement is required by applicable Laws or document with respect to stock exchange rules. For greater certainty, during the distribution period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters drafts of any press releases of the Company for review and comment by the Lead Underwriters (on behalf of the Underwriters) and the Underwriters' counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Units and Additional Securities may be offered and sold to United States purchasers, any such press release shall contain, in substantially the following form, a legend as set forth in, and shall comply with, Rule 135e under the laws 1933 Act: "NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES."; and "This news release does not constitute an offer to sell or a solicitation of an offer to sell any jurisdiction other than of the Provinces and securities in the United States, . The securities have not been and will require each other Selling Firm to agree with not be registered under the Underwriters not to so solicit or sell.
5.6 The obligations United States Securities Act of 1933, as amended (the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other Underwriter "U.S. Securities Act") or any Selling Firm appointed by any other Underwriterstate securities laws and may not be offered or sold within the United States or to or for the account or benefit of U.S. persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available."
Appears in 1 contract
Samples: Underwriting Agreement
DISTRIBUTION OF OFFERED SECURITIES. 5.1 (a) The Underwriters shall will offer the Offered Securities for sale to the publicpublic in the Qualifying Jurisdictions, directly directly, at their sole expense, and through other registered investment dealers and brokers (the Underwriters Underwriters, together with such other investment dealers and brokers are referred to herein as brokers, the “"Selling Firms”), in compliance with applicable Canadian " or each a "Selling Firm") only as permitted by Securities Laws and applicable U.S. federal securities laws and upon the terms and conditions set forth in the ProspectusProspectus and this Agreement and only in those jurisdictions where the Offered Securities may be lawfully offered for sale or sold and at the Offering Price (except as expressly permitted under this Agreement). The Underwriters agree to sell the Offered Securities only in accordance with, any Supplementary Materialand in a manner permitted by, the U.S. Final Prospectuslaws of each of the Qualifying Jurisdictions and, as to the extent applicable, U.S. Securities Laws and Schedule C attached hereto, and will require each Selling Firm to agree, for the benefit of the Corporation, to comply with such laws of Qualifying Jurisdictions, U.S. Securities Laws and Schedule C hereto, and use their best efforts to ensure that each Selling Firm complies with such laws and provisions. For purposes of this Agreement. The Section 2, the Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution Distribution in any Province named in of Canada where the final decision document issued by Final Receipt was obtained from the Alberta applicable Securities Commission pursuant to the Prospectus Review Procedures with respect to the filing of the Final Base Shelf Prospectus and that the sale of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Securities CommissionCommission is provided to the Underwriters. Notwithstanding the foregoingforegoing provisions of this Section 2, an Underwriter will not be liable to the Corporation under this Section 5.1 Agreement with respect to a default under this Agreement by another Underwriter or Selling Firm (that is not an affiliate of such appointed by another Underwriter) under this Section 5.1 if the Underwriter is not also in default.
5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreased.
5.3 In connection with the distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 (b) The Underwriters shall use all their reasonable commercial efforts to complete and to cause the Selling Firms to complete the distribution Distribution of the Underwritten Offered Securities as soon promptly as possible after the Closing Time possible, and shall give prompt notice to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinionthe opinion of the Underwriters, such Distribution has been completed and shall give notice to the Underwriters have ceased distribution Corporation of the proceeds realized in each Qualifying Jurisdiction from the Distribution of the Offered Securities. The Underwriters may solicit offers to purchase or sell the Offered Securities in other jurisdictions outside of Canada and shall, as soon as practicable, provide the United States agreed upon by the Corporation and the Co-Lead Underwriters, directly (including through any affiliate of an Underwriter) and through other Selling Firms, only in compliance with a breakdown of the number of Offered Securities distributed all applicable laws and regulations in each of jurisdiction into and from which they may offer or sell the Provinces where such breakdown is required for Offered Securities, upon the purpose of calculating fees payable to Securities Commissions.
5.5 terms and conditions set forth in the Prospectus and in this Agreement. The Underwriters will not solicit offers to purchase or sell the Offered Securities outside Canada so as to require registration of the Offered Securities or Securities, the filing of a prospectus, prospectus or registration statement or other notice or document with respect to the distribution Distribution of the Offered Securities or require the Corporation to comply with any continuous disclosure, filing or other similar requirements under the laws of any such jurisdiction other than the Provinces and the United States, (and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell). The Underwriters acknowledge that any sale of the Offered Securities in the United States will be made in accordance with Rule 144A (as defined in Schedule C hereto) and Schedule C hereto.
5.6 (c) The obligations Corporation shall allow the Underwriters to participate fully in the preparation of the Prospectus Supplement, the U.S. Memorandum, any Amendment thereto and any marketing materials and shall allow the Underwriters and their counsel to conduct all "due diligence" investigations which the Underwriters may reasonably require to fulfill the Underwriters' obligations as underwriters under this Agreement are several Securities Laws and not joint or joint to enable the Underwriters to execute any certificate required to be executed by the Underwriters in such documentation. Without limiting the generality of the foregoing, such "due diligence investigations" shall include access to senior management and severalauditors of the Corporation and Xxxxxx in a bring down due diligence session prior to closing of the Offering.
(d) The Underwriters may offer the Offered Securities at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Securities offered in the Qualifying Jurisdictions, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Prospectus. No Notwithstanding any such reduction in the purchase price below the Offering Price hereunder, the Corporation will still receive a price equal to the Offering Price per Firm Security and, if applicable, any of the Option Securities sold.
(e) Each Underwriter hereby represents and warrants to the Corporation that it is (and any of its affiliates participating in the Offering are) registered under applicable Securities Laws in the Qualifying Jurisdictions in which registration is required to sell the Offered Securities and in which it will be liable offer them for any act, omission, default or conduct by any other Underwriter or any Selling Firm appointed by any other Underwritersale.
Appears in 1 contract
Samples: Underwriting Agreement
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 The Underwriters shall, and shall require any Selling Firm to agree to, comply with Canadian Securities Laws and U.S. Securities Laws in connection with the Distribution of the Offered Securities and shall offer the Offered Securities for sale to the public, public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus and this Agreement. In addition, the Company and the Underwriters further agree that any (i) reoffers and resales of the Offered Securities in the United States or to, or for the account or benefit of, U.S. persons to Qualified Institutional Buyers or (ii) offers to sell Offered Securities by the Corporation to Substituted Purchasers that are U.S. Accredited Investors, will be made by the Underwriters acting through their respective U.S. Affiliates in accordance with the U.S. Offering Memorandum and Schedule "A" hereto, which is integrated to and forms and integral part of this Agreement. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale and sell the Offered Securities only in those jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other investment dealers jurisdictions, and brokers provided that in the case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Company will not be subject to any continuous disclosure requirements in such jurisdiction.
9.2 The Underwriters shall: (a) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the Distribution of the Offered Securities as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt; and (b) as soon as practicable after the completion of the Distribution of the Offered Securities, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, notify the Company thereof and provide the Company with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions.
9.3 Subject to Section 9.1, the Underwriters and any Selling Firm shall be entitled to offer and sell the Units and Option Units to purchasers that are in other jurisdictions outside of the Qualifying Jurisdictions and the United States where permitted by and in accordance with Canadian Securities Laws, U.S. Securities Laws and the applicable securities Laws of such other jurisdictions, and provided that in the case of jurisdictions other than the Qualifying Jurisdictions and the United States, the Company shall not be required to become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Company will not be subject to any continuous disclosure requirements in such jurisdiction.
9.4 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities are qualified for Distribution in any Qualifying Jurisdiction where a Final Receipt or similar document for the Final Prospectus shall have been obtained from or deemed issued by the applicable Securities Commission following the filing of the Final Prospectus unless otherwise notified in writing by the Company.
9.5 During the Distribution of the Offered Securities, other than the Offering Documents, the press release announcing the Offering, and the Marketing Material, the Underwriters shall not provide any potential investor with any materials or written communication in relation to the Distribution of the Offered Securities. The Company and the Underwriters, on a several basis, as applicable, each covenant and agree: (a) not to provide any potential investor of Offered Securities with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are first provided to any potential investor of Offered Securities; (b) not to provide any potential investor in the Qualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Securities or the Company other than: (i) such marketing materials that have been approved and filed in accordance with NI 44-101; (ii) the Preliminary Prospectus, the Final Prospectus and any Supplementary Material; and (iii) any "standard term sheets" (within the meaning of Canadian Securities Laws) approved in writing by the Company and the Underwriters; and (c) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Company and the Underwriters shall only be provided to potential investors in the Qualifying Jurisdictions.
9.6 Neither the Company, nor the Underwriters shall make any public announcement in connection with the Offering, except if the other party has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters drafts of any press releases of the Company for review and approval by the Lead Underwriter (on behalf of the Underwriters) and the Underwriters' counsel prior to issuance, provided that any such review will be completed in a timely manner, and the Company will incorporate in such press releases all reasonable comments of the Underwriters. To deal with the possibility that the Offered Securities may be offered and sold in the United States or, to or for the account or benefit of, U.S. Persons, any such press release shall contain WKH IROORZLNQotJfo r dHisPtribEutDioUn tJo RUn ite³d States Newswire Services or for dissemination in the United States´, provided however, that any press release issued announcing the closing of the Offering shall not bear such embargo. In addition, any such press release shall comply with, Rule 135e under the 1933 Act and include the following disclaimer: "This news release does not constitute an offer to sell or a solicitation of an offer to sell any of the securities in the United States. The securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the Underwriters together with "U.S. Securities Act") or any state securities laws and may not be offered or sold within the United States or to or for the account or benefit of U.S. persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such other investment dealers registration is available."
9.7 Each Underwriter hereby severally, and brokers are referred not jointly, represents and warrants to herein as the “Selling Firms”)Company, in compliance with the following:
(a) the Underwriter is and will remain so until the completion of the Offering, appropriately registered under applicable Canadian Securities Laws and, to the extent such Underwriter (by and applicable through its U.S. federal Affiliate) is selling Units in the United States, the U.S. Securities Laws (by and through its U.S. Affiliate) so as to permit it to lawfully fulfill its obligations hereunder;
(b) the Underwriter has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(c) other than the Marketing Materials, the Underwriter has not provided any marketing materials to any potential investors in connection with the Offering. The Underwriter has not provided any potential investor in connection with the Offering with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities Commissions on or before the day such marketing materials are fist provided to any potential investor of Offered Securities;
(d) it acknowledges that the Compensation Options, Compensation Units, Compensation Shares, Compensation Warrants and Compensation Warrant Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States. In connection with the issuance of the Compensation Options to it, it represents, warrants and covenants that (i) it is acquiring the Compensation Options as principal for its own account and not for the benefit of any other person; (ii) it is not a U.S. Person and is not acquiring the Compensation Options in the United States, or on behalf of a U.S. Person or a person located in the United States; and (iii) this Agreement was executed and delivered outside the United States. The Underwriter acknowledges and agrees that the Compensation Options may not be exercised in the United States or by or on behalf or for the benefit of a U.S. Person or a person in the United States, unless such exercise is exempt from registration under the 1933 Act and the applicable securities laws of any state of the United States.
9.8 The Underwriters severally, and not jointly, nor jointly and severally, covenant agree with the Company, the following:
(a) During the period of distribution of the Offered Securities by or through the Underwriters, the Underwriters will offer and sell Offered Securities to the public only in the Selling Jurisdictions where they may lawfully be offered for sale upon the terms and conditions set forth in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this AgreementAgreement either directly or through other registered investment dealers and brokers. The Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in any Province named in Qualifying Jurisdiction where the final decision document issued by the Alberta Securities Commission pursuant to the Prospectus Review Procedures with respect to Final Receipt shall have been obtained following the filing of the Final Base Shelf Prospectus and that the sale of the Offered Securities has been registered under the U.S. Securities Act unless the Underwriters receive notice to the contrary from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in defaultProspectus.
5.2 After the Underwriters have made a reasonable effort to sell all of the Offered Securities at the initial Offering Price disclosed in the Prospectus Supplement, the Underwriters may decrease the Offering Price. Any such decrease will not decrease the price paid by the Underwriters to the Corporation for the Offered Securities or the Underwriting Fee paid by the Corporation to the Underwriters for the Offered Securities. (b) The Underwriters will inform comply with applicable securities laws in the Corporation if the Offering Price to the public is decreased.
5.3 In Qualifying Jurisdictions in connection with the offer and sale and distribution of the Offered Securities, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Offered Securities at levels other than those that might otherwise prevail in the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities Commissions.
5.5 (c) The Underwriters will not directly or indirectly, solicit offers to purchase or sell the Offered Securities or deliver any Offering Document to purchasers so as to require registration of the Offered Securities or the filing of a prospectus, prospectus or registration statement or other notice or document with respect to the Offered Securities under the Laws of any jurisdiction other than the Qualifying Jurisdictions, including without limitation, the United States.
(d) The Underwriters will use their commercially reasonable best efforts to complete the distribution of the Offered Securities under as promptly as possible after the laws Closing Time. The Lead Underwriter will notify the Company when the Underwriters have ceased the distribution of any jurisdiction other than the Provinces and Offered Securities, and, within 30 days after the United StatesClosing Date, will provide the Company, in writing, with a written breakdown of the number of Offered Securities distributed (i) in each of the Qualifying Jurisdictions, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by (ii) in any other Underwriter or any Selling Firm appointed by any other Underwriterjurisdictions in which the Units are sold.
Appears in 1 contract
Samples: Underwriting Agreement
DISTRIBUTION OF OFFERED SECURITIES. 5.1 9.1 The Underwriters shall, and shall require any investment dealer (other than the Underwriters) with which the Underwriters have a contractual relationship in respect of the distribution of the Offered Securities (each, a “Selling Firm”) to agree to, comply with Canadian Securities Laws in connection with the distribution of the Offered Securities and shall offer the Offered Securities Shares for sale to the public, public directly and through other investment dealers and brokers (the Underwriters together with such other investment dealers and brokers are referred to herein as the “Selling Firms”), in compliance with applicable Canadian Securities Laws and applicable U.S. federal securities laws and Firms upon the terms and conditions set forth out in the Prospectus, any Supplementary Material, the U.S. Final Prospectus, as applicable, Prospectus and this Agreement. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale to the public and sell the Offered Shares only in those jurisdictions where they may be lawfully offered for sale or sold and shall seek the prior consent of the Company, such consent not to be unreasonably withheld, regarding the jurisdictions other than the Qualifying Jurisdictions where the Offered Shares are to be offered and sold. The Underwriters shall use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Shares as soon as reasonably practicable but in any event no later than 42 days after the date of the Final Receipt. As soon as practicable after the completion of the distribution of the Offered Shares, and in any event within 30 days after the later of the Closing Date or the last Option Closing Date, Echelon (on behalf of the Underwriters) shall notify the Company thereof and provide the Company with a breakdown of the number of Offered Shares distributed in each of the Qualifying Jurisdictions.
9.2 The Underwriters and any Selling Firm shall be entitled to offer and sell the Shares and Option Shares to purchasers that are in other jurisdictions in accordance with any applicable securities and other laws in the jurisdictions in which the Underwriters and/or Selling Firms offer the Offered Shares.
9.3 For the purposes of this Section 9, the Underwriters shall be entitled to assume that the Offered Securities Shares are qualified for distribution in any Province named in Qualifying Jurisdiction where a Final Receipt or similar document for the final decision document Final Prospectus shall have been obtained from or deemed issued by the Alberta applicable Securities Commission pursuant to the Prospectus Review Procedures with respect to following the filing of the Final Base Shelf Prospectus and that unless otherwise notified in writing by the sale Company.
9.4 During the Distribution of the Offered Securities has been registered under Shares, other than the U.S. Securities Act unless Offering Documents, the press release announcing the Offering, and the Marketing Materials, the Underwriters receive notice shall not provide any potential investor with any materials or written communication in relation to the contrary from the Corporation or the applicable Securities Commission. Notwithstanding the foregoing, an Underwriter will not be liable to the Corporation under this Section 5.1 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) under this Section 5.1 if the Underwriter is not also in default.
5.2 After the Underwriters have made a reasonable effort to sell all Distribution of the Offered Shares. The Company and the Underwriters, on a several basis, each covenant and agree: (a) not to provide any potential investor of Offered Shares with any marketing materials unless a template version of such marketing materials has been filed by the Company with the Securities at Commissions on or before the initial Offering Price disclosed day such marketing materials are first provided to any potential investor of Offered Shares; (b) not to provide any potential investor in the Prospectus SupplementQualifying Jurisdictions with any materials or information in relation to the Distribution of the Offered Shares or the Company other than: (i) such marketing materials that have been approved and filed in accordance with NI 44-101; (ii) the Preliminary Prospectus, the Underwriters may decrease Final Prospectus and any Supplementary Material; and (iii) any “standard term sheets” (within the Offering Price. Any such decrease will not decrease the price paid meaning of Canadian Securities Laws) approved in writing by the Underwriters to Company and the Corporation for the Offered Securities or the Underwriting Fee paid Underwriters; and (c) that any marketing materials approved and filed in accordance with NI 44-101 and any standard term sheets approved in writing by the Corporation to Company and the Underwriters for shall only be provided to potential investors in the Offered Securities. The Underwriters will inform the Corporation if the Offering Price to the public is decreasedQualifying Jurisdictions.
5.3 In 9.5 Neither the Company, nor the Underwriters shall make any public announcement in connection with the distribution Offering, except if the other party has consented to such announcement or the announcement is required by applicable Laws or stock exchange rules. For greater certainty, during the period commencing on the date hereof and until completion of the Distribution of the Offered Securities, the Company will promptly provide to the Underwriters may over-allot or effect transactions that stabilize or maintain the market price drafts of any press releases of the Offered Securities at levels other than those Company for review and approval by the Lead Underwriters (on behalf of the Underwriters) and the Underwriters’ counsel prior to issuance, provided that might otherwise prevail any such review will be completed in a timely manner, and the open market, as permitted by applicable Canadian Securities Laws. Such transactions, if commenced, may be discontinued at any time.
5.4 The Underwriters shall use Company will incorporate in such press releases all reasonable efforts to complete and to cause the Selling Firms to complete the distribution comments of the Underwritten Securities as soon as possible after the Closing Time and to complete the distribution of the Over-Allotment Securities as soon as possible after the applicable Over-Allotment Closing Time. The Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Securities and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Securities distributed in each of the Provinces where such breakdown is required for the purpose of calculating fees payable to Securities CommissionsUnderwriters.
5.5 The Underwriters will not solicit offers to purchase or sell the Offered Securities so as to require registration of the Offered Securities or the filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Offered Securities under the laws of any jurisdiction other than the Provinces and the United States, and will require each other Selling Firm to agree with the Underwriters not to so solicit or sell.
5.6 The obligations of the Underwriters under this Agreement are several and not joint or joint and several. No Underwriter will be liable for any act, omission, default or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter.
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Samples: Underwriting Agreement
